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COLUMBIA LAW REVIEW FORUM
VOL. 122 MAY 27, 2022 PAGES 90–109
A COURT OF TWO MINDS
Bert I. Huang*
What do the Justices think they’re doing? They seem to act like
appeals judges, who address questions of law as needed to reach a
decision—and yet also like curators, who single out only certain
questions as worthy of the Supreme Court’s attention. Most of the time,
the Court’s “appellate mind” and its “curator mind” are aligned because
the Justices choose to hear cases where a curated question of interest is
also central to the outcome. But not always. In some cases, the Court
discovers that it cannot reach—or no longer wishes to reach—the
originally curated question. Looking at what the Justices say and do in
such instances offers a revealing glimpse into the interplay between their
appellate and curator roles. These cases illustrate how the norms of
appellate judging can enhance, rather than constrain, the Court’s
discretion in choosing which issues to address and which to avoid. Using
this discretion, however, entails the risk of distorting legal doctrines
beyond those curated for review.
INTRODUCTION
“The Court wrongly sidesteps the principal question that we were asked to
answer . . . .”
— Justice Clarence Thomas1
“[W]e believe we should not answer more than is necessary to resolve the
parties’ dispute.”
— Justice Stephen Breyer2
*. Michael I. Sovern Professor of Law and Walter E. Meyer Research Professor in Law
& Social Problems, Columbia Law School. I wish to thank the editors of the Columbia Law
Review for inviting me to offer these observations. For insightful comments and helpful
conversations, I am grateful to Judge Stephanos Bibas, Judge Jeremy Fogel, Tara Grove, Ben
Johnson, Alli Orr Larsen, Maggie Lemos, Leah Litman, Ronald Mann, Tom Merrill, Tejas
Narechania, and workshop participants at Berkeley’s Colloquium on Courts and Judicial
Process. Jerry Du, Henry Goldberg, Jessica Lim, and Noah Rushin provided superb research
assistance. At the Columbia Law Review, Dori Rahbar offered expert guidance throughout
the editing process. This project was supported by the Henry and Lucy Moses Faculty
Research Fund at Columbia University.
1. Google LLC v. Oracle America, Inc., 141 S. Ct. 1183, 1212 (2021) (Thomas, J.,
dissenting).
2. Id. at 1197 (majority opinion).
902022] A COURT OF TWO MINDS 91
The way the Supreme Court reviews cases has a dual nature. It has the
familiar feel of an appeals process, yet also the distinctive feel of curating
questions of law to be answered once and for all. The Justices seem to be
of two minds: In an “appellate” frame of mind, they see the task as a circuit
judge might—addressing questions of law as needed along the path to a
decision. In a “curator” frame of mind, they see the task as answering only
those questions deemed worthy of the Court’s attention, based on their
selection criteria for certiorari review.3 These two orientations are usually
well-aligned because the Justices carefully choose to hear cases where the
curated question is also central to the outcome.
Yet this alignment does break down from time to time. For example,
what if the curated question turns out not to really matter for the outcome?
Or what if the Justices regret taking up the curated question and now feel
stuck with the case? Moments like these can offer insights into how the
Justices think about the Court’s proper role. The analysis in Part II will
examine the Justices’ reasoning and rhetoric in recent years on such
occasions where certiorari has broken down. These instances offer vivid
reminders that, although appellate norms are said to constrain the Court’s
discretion as a curator by limiting which questions are available for review,
the opposite effect is also possible: The norms and techniques of appellate
judging can increase curatorial choice when the Justices use them to
reshape—or even punt—the questions they originally said they would
answer.4
One has to wonder: Why would the Justices ever use fancy appellate
footwork to sidestep a curated question when they can always just dismiss
3. Readers who think about the work of the federal courts in terms of “law
declaration” versus “dispute resolution” will soon notice that the appellate/curator
framework cuts across that dichotomy. As Part I shows, both the appellate and curator
mindsets allow the Court to choose which questions of law to answer and how broadly to
answer them (in the spirit of law declaration), though they differ in the norms and practices
that enable such discretion. Moreover, as Part II illustrates, although both mindsets allow a
large degree of litigant control over what is contested and what arguments to press (in the
spirit of dispute resolution), they also allow the Court leeway to deviate from those argued
grounds. These examples offer further reminders of the modern Court’s well-known
tendency to focus on law declaration while nodding, at least nominally, to dispute
resolution. How to evaluate the many variations of this balancing act remains in the eye of
the beholder. See generally Thomas W. Merrill, Legitimate Interpretation—Or Legitimate
Adjudication?, 105 Cornell L. Rev. 1395 (2020) (arguing for a pragmatic account of judicial
legitimacy that centers on the perceptions of the parties in a case about the courts’ approach
to dispute resolution and highlighting what may be lost when either courts or commentators
overemphasize law declaration).
4. In particular, as close observers of the Court know well, these norms and
techniques allow the Justices various alternative paths to disposition of the case. For
discussion of such “off-ramps” and other means of punting an issue, see infra sections I.B
and II.B and Part III.92 COLUMBIA LAW REVIEW FORUM [Vol. 122:90
it, no questions asked?5 Part III will consider some possible motivations. It
will also highlight one of the unintended consequences: When the Court
dodges a curated question by answering a different one instead—one
chosen out of convenience rather than interest—it runs the risk of
distorting that other area of law.
But first, let’s set the scene.
I. APPELLATE MIND, CURATOR MIND
A. The Supreme Court as Curator
Think about how cases before the Court are often said to be “vehicles”
for answering questions of law. The suggestion seems to be that the whole
point of accepting a case for review (in an appeals-like way) is to allow the
Court to answer a specific question about what a law means (in a curator-
like way).6 If there were any doubt, the Court’s rules say that the first thing
in a petition for certiorari should be a list of “[t]he questions presented
for review, expressed concisely in relation to the circumstances of the case,
without unnecessary detail.”7 Accordingly, petitions list such “questions
presented” (QPs) at the very start of the brief, as if posing those legal
questions to the Court were the petitioners’ main purpose too (and it just
so happens that the right answer to the QP will help them win the case).
Moreover, when the Court grants certiorari, it speaks as if QPs are the
obvious unit of analysis8—sometimes limiting its grant to one but not
5. Literally, no questions asked: Dismissing a question or a case “as improvidently
granted” (DIG) operates in effect as a delayed denial of certiorari. For discussion of this
form of dismissal, see infra section I.B and Part III.
6. By contrast, one usually does not speak of “vehicles” in relation to the work of the
federal circuit courts. Although appellants are well advised to spell out clearly the errors
they are challenging, there is not the sort of marketing of specified questions of law as
especially important or confounding (e.g., the subject of a split among other courts) that is
typical of certiorari at the Supreme Court. Appeals judges tend to see their job as working
through just enough of the raised issues to resolve the appeal—and if a tough legal issue
disappears along the way, all the better. But mileage may vary on these broad
generalizations, and it is easy to find examples of how the circuit courts have adopted
practices that may look like curation, such as tracking selected cases for oral argument and
for “published” opinion. See, e.g., Bert I. Huang, Lightened Scrutiny, 124 Harv. L. Rev.
1109, 1117–18 (2011) (noting appeals judges discussing the need for “triage” procedures,
such as limiting oral argument and opinion publication to selected cases); Allison Orr
Larsen & Neal Devins, Circuit Personalities, 108 Va. L. Rev. (forthcoming 2022) (manuscript
at 11, 14), https://ssrn.com/abstract=4035789 [https://perma.cc/C5G9-KBN2] (presenting
the latest data on variation among circuits in rates of oral argument and opinion
publication); Marin K. Levy, Judging Justice on Appeal, 123 Yale L.J. 2386, 2391 (2014)
(reviewing William M. Richman & William L. Reynolds, Injustice on Appeal: The United
States Courts of Appeals in Crisis (2012), which expounds upon practices amounting to “de
facto certiorari” in the federal circuit courts).
7. Sup. Ct. R. 14.1(a).
8. One might also note here the Court’s practices of consolidating cases linked by
similar QPs—or of “holding” petitions in cases related to a granted QP—for possible later2022] A COURT OF TWO MINDS 93
another of the petitioner’s QPs, or even rewriting the QP itself. For good
measure, the rules also emphasize that “[o]nly the questions set out in the
petition, or fairly included therein, will be considered by the Court.”9
Parties recognize that their case will mainly be seen by the Court as a
potential vehicle for answering those selected questions of law, and it will
not be interested unless one of the questions is deemed “certworthy.”
Although it can’t hurt to present other compelling reasons to undo the
lower court ruling, petitioners know that the Court is very unlikely to take
a case solely for error correction. They know that, instead, the best way to
pitch a petition is to highlight the importance of answering the QPs, such
as by pointing to splits among circuit courts and state courts. Again, the
Court’s rules say as much about splits,10 and Professor Tejas Narechania’s
impressive new study (in the current issue of the Columbia Law Review)
sheds empirical light on what catches the Court’s eye in cases without
splits.11
Yet not everyone thinks this way. It seems a fair guess that most of the
general public imagines the Court’s work to be mainly deciding who wins
and who loses a case. Some might notice that the Court does so by deciding
whether to overturn an earlier court’s decision—that is, like an appeals
court. They are not wrong. They are seeing the appellate side of certiorari
review.12 Even if it may be less salient to casual observers that the Court has
chosen its cases as vehicles for answering certain QPs dutifully listed by the
petitioners, it is also true that, once a lucky petition is granted,13 the
orders to grant-vacate-and-remand (GVRs) in light of the resolution of that QP. For an
incisive study of GVRs, see generally Aaron-Andrew P. Bruhl, The Supreme Court’s
Controversial GVRs—And an Alternative, 107 Mich. L. Rev. 711 (2009).
9. Sup. Ct. R. 14.1(a).
10. Sup. Ct. R. 10 (emphasizing conflicts among lower courts as a key factor the Court
would consider in deciding whether to grant a petition for a writ of certiorari).
11. Tejas N. Narechania, Certiorari in Important Cases, 122 Colum. L. Rev. 923, 933,
953 (2022) (using computational text analysis to analyze Supreme Court merits opinions
for insight about various influences into grants of certiorari in cases not involving splits).
12. There are also cases at the Court that are not vehicles for curated QPs, of course.
Summary reversals, for example, are decided with an almost entirely appellate mindset
(even though they are brought to the Court on a petition for certiorari). In these cases, the
Court notices an error in the lower court ruling that it feels so compelled to fix that not only
does it overlook the lack of a split, but it also reverses in a speedy per curiam opinion based
on the petition-stage briefing and the record, without need for merits briefing or oral
argument. See, e.g., Richard C. Chen, Summary Dispositions as Precedent, 61 Wm. & Mary
L. Rev. 691, 694–97 (2020) (describing the Court’s practice of summary reversals); Edward
A. Hartnett, Summary Reversals in the Roberts Court, 38 Cardozo L. Rev. 591, 594–607
(2016) [hereinafter Hartnett, Summary Reversals] (empirically surveying and classifying
summary reversals between 2005 and 2016—and noticing a degree of concentration in
habeas cases, including capital cases, as well as qualified immunity cases). There are also a
very small number of mandatory appeals and cases of original jurisdiction.
13. Around sixty or seventy cases out of thousands of petitions are chosen and decided
this way each year. See The Supreme Court, 2019 Term—The Statistics, 134 Harv. L. Rev.
610, 618–19 tbl.II (2020) (showing that the Supreme Court granted plenary review in sixty
cases in its 2019 Term, resulting in fifty-nine dispositions by full opinion, out of 5,71894 COLUMBIA LAW REVIEW FORUM [Vol. 122:90
ensuing process does take on the trappings of a typical appeal. Most
notably, there will eventually be a formal appellate outcome (reversing,
affirming, vacating, or remanding) in nearly all the granted cases;14 and
so, at least in that sense, there will be a winner and a loser.15 A vehicle is
still a real case with real parties.
When a case works well as a vehicle, the appellate and curator
characteristics of certiorari review are naturally aligned. There is hardly
any tension between answering the QP a certain way (curator-like) and
then saying that this answer means the decision must come out a certain
way (appeals-like). Maybe because such alignment happens so regularly,
the dual nature of certiorari is rarely considered controversial.
But not never. Scholars have observed, with varying degrees of
concern, that the Court’s agenda-setting powers have been amplified over
the past half century as its work has become nearly all certiorari all the
time, allowing it almost total control over which questions of law it will or
will not decide.16 A recent, provocative contribution (also in the Columbia
Law Review) is Professor Benjamin Johnson’s history-driven critique of the
modern Court’s obsession with preselecting and answering QPs. The
analysis presses the question (one might say) of whether the Court is overly
petitions considered); The Supreme Court, 2020 Term—The Statistics, 135 Harv. L. Rev.
491, 498–99 tbl.II (2021) (showing that the Supreme Court granted plenary review in
seventy-two cases in its 2020 Term, resulting in sixty-two dispositions by full opinion, out of
5,257 petitions considered).
14. Along the way, the Court can do things one regularly sees other appeals courts
doing—such as asking for briefing on other issues it has noticed (like jurisdiction), or
ignoring an issue or an argument (deemed immaterial to the result or forfeited or waived
due to a failure to argue it properly at some stage). Also, although the parties’ arguments in
their briefs are usually focused on the granted QPs, during oral arguments, the Justices
might bring up all sorts of issues having to do with the record, the procedural posture,
factual premises, or other aspects of the broader context of the case.
15. Generally speaking, if the result at the Court is affirmance, then the respondent
has won; if the result is reversal (and judgment is entered), the petitioner has won. If the
case is remanded for further proceedings (with some aspect of the lower court ruling
vacated or reversed), it is common to say that the petitioner has “won” in the sense of getting
another chance after having lost below. And of course, in the lower courts, eventually the
parties will win or lose certain issues (including possibly those where the Court has weighed
in) unless there is a settlement, dismissal, or other nonmerits outcome.
16. See, e.g., Paul D. Carrington & Roger C. Cramton, Judicial Independence in
Excess: Reviving the Judicial Duty of the Supreme Court, 94 Cornell L. Rev. 587, 590–91
(2009); Margaret Meriwether Cordray & Richard Cordray, The Supreme Court’s Plenary
Docket, 58 Wash. & Lee L. Rev. 737, 751–54 (2001); Daniel Epps & William Ortman, The
Lottery Docket, 116 Mich. L. Rev. 705, 706 (2018); Tara Leigh Grove, The Exceptions Clause
as a Structural Safeguard, 113 Colum. L. Rev. 929, 932, 977–78 (2013); Edward A. Hartnett,
Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges’ Bill, 100
Colum. L. Rev. 1643, 1644–46 (2000); Henry Paul Monaghan, On Avoiding Avoidance,
Agenda Control, and Related Matters, 112 Colum. L. Rev. 665, 669 (2012); Carolyn Shapiro,
The Limits of the Olympian Court: Common Law Judging Versus Error Correction in the
Supreme Court, 63 Wash. & Lee L. Rev. 271, 275–77 (2006); Kathryn A. Watts, Constraining
Certiorari Using Administrative Law Principles, 160 U. Pa. L. Rev. 1, 3, 10–13 (2011).2022] A COURT OF TWO MINDS 95
favoring its curator mind.17 Just posing this question is eye-opening,18 as we
have all become quite accustomed to cases serving as vehicles for
answering curated questions.19 Moreover, when certiorari is working
smoothly, it can go unnoticed that two things are happening at once.
B. The Justices as Appeals Judges
When certiorari misfires, though, things get interesting. What
happens when a case turns out to be a poor vehicle for addressing the
curated question? This can happen for countless reasons (though the
leading treatise counts seventeen).20 For example, what if a factual
ambiguity raises doubts about whether the QP even matters for resolving
the case?21 Such complications—often called “vehicle problems”22—tend
to be screened out at the certiorari stage, and those cases are denied
review.23 This is why we don’t hear much about them. Yet, some problems
17. See Benjamin B. Johnson, The Origins of Supreme Court Question Selection, 122
Colum. L. Rev. 793, 800–01 (2022).
18. Posing this question is also highly generative of others. For example, imagine a
hypothetical Court that believes it must decide the entire case, rather than focus on
preselected questions. Which cases would it—or should it—then prioritize for review?
Would its cases come to look more like the ones highlighted in Professor Narechania’s
study—cases lacking splits yet deemed certworthy due to various other indicia of
importance? See Narechania, supra note 11, at 932--34.
19. Johnson, supra note 17, at 803 (noting the “uncritical acceptance” of the Court’s
question-selection practice); id. at 864 (“This practice is so commonplace that it has largely
escaped notice, to say nothing of close scrutiny.”).
20. See Stephen M. Shapiro, Kenneth S. Geller, Timothy S. Bishop, Edward A. Hartnett
& Dan Himmelfarb, Supreme Court Practice 5-50 to 5-55 (11th ed. 2019). To be more
precise, this treatise lists seventeen categories of reasons, some of which include varied
rationales. This listing is based on reasons the Court itself has given to explain why it was
dismissing cases as improvidently granted (and the Court only states reasons some of the
time). Among the various reasons are that “[a]n important issue may be found not to be
presented by the record”; that “[t]he Court may also conclude that the case is not certworthy
based upon the totality of circumstances”; that “[t]he Court may conclude that it cannot
reach the question accepted for review without reaching a threshold question not presented
in the petition”; that “[a] hitherto unsuspected jurisdictional defect may become apparent”;
that “[d]ecision of the question upon which certiorari was granted may prove unnecessary
because the judgment below was clearly correct on another ground”; and that “[a]n
intervening court decision or change in statute may eliminate the issue or make it unlikely
that the question will arise again, at least in the same context.” Id.
21. See, e.g., Transcript of Oral Argument at 40–44, City of Hays v. Vogt, 138 S. Ct.
1683 (2018) (No. 16-1495), 2018 WL 1368609 (transcribing a colloquy among Chief Justice
John Roberts, Justice Stephen Breyer, and counsel Kelsi Corkran about whether an
objection had been preserved below). Hays was eventually DIG’d. Hays, 138 S. Ct. at 1684
(mem.).
22. Readers may get a sense of just how much this term has entered the standard
vocabulary of litigating parties at the certiorari stage by searching for “vehicle problem” on
the site SCOTUSblog. See, e.g., Search, SCOTUSblog, https://www.scotusblog.com/?s=
vehicle+problem [https://perma.cc/5VCS-N5NJ] (last visited Mar. 8, 2022).
23. They are even more likely to be screened out now than, say, ten years ago, because
the Court has apparently started a practice of “relisting” petitions that it might grant, for an96 COLUMBIA LAW REVIEW FORUM [Vol. 122:90
do slip through, and others arise after the case is accepted. For example,
what if some real-world fact changes in a way that makes answering the QP
less pressing, or even moot?24 Or, to consider another kind of difficulty
that may arise,25 what if the Court comes to believe that the most prudent
course is not to answer the QP at all?26
Then the Court is stuck with a case, with possibly no QP it can or wants
to address. What are the Justices to do? Should they dismiss the case as
improvidently granted (DIG), thereby undoing the grant of certiorari?27
extra week or two, to allow time to vet the case for vehicle problems. See Kimberly
Strawbridge Robinson, Supreme Court Adds Layer of Due Diligence: Relists Explained,
Bloomberg L. (Jan. 4, 2021), https://news.bloomberglaw.com/us-law-week/supreme-court-
adds-layer-of-due-diligence-relists-explained [https://perma.cc/8EXL-PENH]. Supreme
Court practitioner John Elwood deserves the credit for making this practice well-known
since around the time that it began through his “Relist Watch” series on SCOTUSblog. See
John Elwood, Relist Watch, SCOTUSblog, https://www.scotusblog.com/author/john-
elwood/ [https://perma.cc/5C38-SK6Y] (last visited Jan. 29, 2022). For more discussion
about the possible implications of this relisting practice on how observers might interpret
the Court’s DIGs, see infra section III.B.
24. See, e.g., N.Y. State Rifle & Pistol Ass’n. v. City of New York, 140 S. Ct. 1525, 1526–
27 (2020) (per curiam) (dismissing as moot after the city amended the relevant rule
concerning the transport of firearms).
25. The term “vehicle problem” usually does not encompass situations where the
Court wants to leave the QP unanswered (say, for prudential reasons). But for our purposes,
there is a useful similarity: If the QP is willingly dumped, the case is no longer a vehicle for
that QP. And so the question for the Court remains: Should anything more in the case be
decided, and if so, what?
26. A far-too-brief word is in order here about why a Court might prudentially wish to
leave a granted QP unanswered. Among the many possible reasons, two sets may be
especially notable. First, the Justices, after much reflection and negotiation, may recognize
that they cannot reach a useful answer. First American offers an illustration of this. See First
Am. Fin. Corp. v. Edwards, 567 U.S. 756, 757 (2012) (mem.) (per curiam); Pamela S. Karlan,
The Supreme Court 2011 Term—Foreword: Democracy and Disdain, 126 Harv. L. Rev. 1,
58–62 (2012) (noting that the DIG in First American deviated from the norm, occurring
months after oral argument, and was likely due to an inability to reach a satisfactory result).
Second, the Court may regret having granted review of certain contentious or politically
fraught issues. The literature on such “passive virtues” and Bickelian avoidance is vast, but
articles by Professors Erin Delaney and Tara Leigh Grove offer two insightful places to start,
each with an especially thoughtful discussion of certiorari. See Erin F. Delaney, Analyzing
Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L.J. 1, 16–19 (2016); Tara
Leigh Grove, Sacrificing Legitimacy in a Hierarchical Judiciary, 121 Colum. L. Rev. 1555,
1607 (2021). For analytical surveys of the related (and also vast) literature on judicial
minimalism, see generally Tara Leigh Grove, The Structural Case for Vertical Maximalism,
95 Cornell L. Rev. 1 (2009); Thomas P. Schmidt, Judicial Minimalism in the Lower Courts,
108 Va. L. Rev. (forthcoming 2022), https://ssrn.com/abstract=3914201 [https://perma.cc/
C6DN-QJYS].
27. The definitive studies on DIGs are a series by Professors Michael Solimine and
Rafael Gely. Michael E. Solimine & Rafael Gely, The Supreme Court and the Sophisticated
Use of DIGs, 18 Sup. Ct. Econ. Rev. 155 (2010) [hereinafter Solimine & Gely, Sophisticated
Use of DIGs] (presenting empirical tests of hypotheses about decisions to DIG); Michael E.
Solimine & Rafael Gely, The Supreme Court and the DIG: An Empirical and Institutional
Analysis, 2005 Wis. L. Rev. 1421 [hereinafter Solimine & Gely, An Empirical and
Institutional Analysis] (presenting quantitative and qualitative analyses of a half-century of2022] A COURT OF TWO MINDS 97
This would seem the most straightforward solution. Yet the Court takes
this path only rarely.
To appreciate the range of other options available to the Justices, it
helps to say more about the appellate and curator frames of mind. Each
involves not only a set of norms but also a set of judicial methods. Familiar
techniques of appellate judging include deciding on any available
grounds, requesting further briefing from the parties, and remanding a
case to a lower court for further proceedings. Meanwhile, special
procedures at the Court serve the purposes of curation: denying or grant-
ing certiorari, of course, and also DIG’ing, which works like a delayed
denial of certiorari.
Consider how the Justices’ facility with appellate techniques expands
the Court’s options when it otherwise might DIG. Should it try to rescue
the vehicle by finding a way to keep the QP central to the case, despite
emerging doubts? Maybe the Court could ask the parties for supplemental
briefing on the ambiguity that is putting the QP’s relevance up in the air.28
Or maybe it can just assume away such doubt for now,29 relying on an
eventual remand for the court below to sort that out.
And what if the Court were now seeking to avoid, rather than rescue,
the question it had originally wanted to decide? Instead of DIG’ing, the
Court may try to locate an “off-ramp” somewhere else in the case. For
example, the Court can sidestep a QP by resolving the case on other
grounds,30 such as a jurisdictional or antecedent question,31 or maybe even
a secondary QP.32 Or it might decide this case so narrowly, in a one-time-
DIGs from 1954 to 2004). For more recent data, see Bryan Gividen, The Roberts Court and
DIGs, Above the Law (Mar. 5, 2021), https://abovethelaw.com/2021/03/the-roberts-court-
and-digs/ [https://perma.cc/4FW7-H42P].
28. See, e.g., Unite Here Local 355 v. Mulhall, 571 U.S. 83, 85 (2013) (Breyer, J.,
dissenting) (suggesting requesting supplemental briefing on the potential vehicle problems
of mootness and standing).
29. See, e.g., McDonough v. Smith, 139 S. Ct. 2149, 2155 (2019) (“assum[ing] without
deciding” the necessary premise).
30. And the Court may first ask the parties about the alternative grounds (which might
be a possible jurisdictional issue, a factual premise for the QP’s relevance, a question about
waiver or changing arguments, or other ways of resolving the case) at oral argument or even
request supplemental briefing on it. This is not a subtle hint, to anyone watching, that the
Court is considering punting. See, e.g., Frank v. Gaos, 139 S. Ct. 1041, 1046 (2019) (per
curiam) (remanding for the circuit court to address a question of standing, after requesting
and receiving supplemental briefing); Zubik v. Burwell, 578 U.S. 403, 407–08 (2016) (per
curiam) (remanding the case for consideration of a feasible alternative solution, after
requesting and receiving supplemental briefing).
31. See, e.g., Hollingsworth v. Perry, 570 U.S. 693, 700–01 (2013) (punting on
constitutional issues concerning marriage equality, by ruling that petitioners did not have
standing).
32. In Google LLC v. Oracle America, Inc., for example, the Court decided the second
question presented, thereby avoiding the first. See 141 S. Ct. 1183, 1197 (2021). For another
example, see Philip Morris USA v. Williams, 549 U.S. 346, 352 (2007) (deciding only the98 COLUMBIA LAW REVIEW FORUM [Vol. 122:90
only or fact-bound way,33 that the QP is left largely unanswered for future
cases.34 Or it can remand the case, asking the lower court to clarify an
ambiguity or address an antecedent question.35 And so forth. When the
Court uses such an off-ramp to dodge the issue it said it would address—
exercising curatorial choice well after certiorari—the source of this
discretion is a repertoire of appellate techniques.
II. WHEN CERTIORARI BREAKS DOWN
What internal norms at the Court seem to govern this extra dimension
of discretion in reconsidering which questions to address? Why do the
Justices turn to this source of discretion when a more straightforward
option—dismissal—is always available?
One window into these questions is what the Justices themselves say
when certiorari breaks down—when a vehicle problem appears, or when
answering the originally chosen QP no longer seems like such a good idea.
Just as Professor Narechania’s article focuses on what the Court’s opinions
say about the reasons for granting certiorari in the first place,36 the
following analysis will look closely at what the Justices say and do as they
revisit that choice later on: What sorts of reasoning appear in their disputes
over whether to DIG a case, to dodge a QP by taking an off-ramp, or to
rescue a troubled vehicle? What ends up happening in these cases, and
what can one infer from the Court’s willingness to take these paths?
This Part highlights selected expressions of the Justices over the past
decade,37 focusing on their contestation over internal norms in cases in
which a DIG occurred or was contemplated, as well as in other cases
first of two questions presented and noting that, because the answer to the first would
require a new trial, there was no need to answer the second).
33. See, e.g., Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1732
(2018) (“The outcome of cases like this in other circumstances must await further
elaboration in the courts . . . .”); Leslie Kendrick & Micah Schwartzman, The Etiquette of
Animus, 132 Harv. L. Rev. 133, 133 (2018) (noting that, in Masterpiece Cakeshop, the Court
“ducked central questions” about the constitutional limits on religious liberty).
34. See, e.g., Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1883 (2021) (Alito, J.,
concurring) (criticizing the majority for skipping over the question presented about
whether Employment Division v. Smith, 494 U.S. 872 (1990), should be overruled).
35. See, e.g., Ret. Plans Comm. of IBM v. Jander, 140 S. Ct. 592, 595 (2020) (per
curiam) (remanding for the circuit court to consider in the first instance particular
arguments the parties raised in their briefing); PDR Network, LLC v. Carlton & Harris
Chiropractic, Inc., 139 S. Ct. 2051, 2056 (2019) (remanding for the circuit court to consider
two antecedent issues); Spokeo, Inc. v. Robins, 578 U.S. 330, 334 (2016) (remanding for the
circuit court to address one specific component of standing).
36. See Narechania, supra note 11, at 932--34.
37. For a thorough study of DIGs before this period, see generally Solimine & Gely, An
Empirical and Institutional Analysis, supra note 27. For an update on several quantitative
measures, see Gividen, supra note 27. Note that, unlike in Professor Narechania’s
sophisticated computational analysis, there will be no attempt here to draw systematic
inferences or to detect patterns over time.2022] A COURT OF TWO MINDS 99
involving off-ramps. A preliminary question may be on the reader’s mind:
Does the Court ever explain why it does or doesn’t DIG? True, the typical
DIG is an unsigned one-liner.38 But some are in fact accompanied by
explanation or by separate writings.39 Moreover, there are dissenting
opinions arguing that a case should have been DIG’d, where the Court
issued a merits opinion anyway.40 Finally, there are occasionally frank
discussions at oral argument, among the Justices and counsel, about these
options.41
A. Deciding Anyway
Appellate methods can serve the curatorial interest in keeping a QP
alive by offering means for rescuing a vehicle in the face of a possible
defect. For example, in McDonough v. Smith, a statute of limitations case,
in an opinion by Justice Sonia Sotomayor, the majority adopts the work-
around of “assum[ing] without deciding” the necessary answers to an
antecedent question,42 though the dissent considered this lacuna a serious
enough vehicle problem to urge a DIG.43 And in Dart Cherokee Basin
Operating Co. v. Owens, a case about removal of class actions to federal
court, the majority opinion by Justice Ruth Bader Ginsburg answers an
antecedent procedural question in a way that allows the Court to reach the
38. See Shapiro et al., supra note 20, at 5-51 (“It is difficult to ascertain the reasons for
a dismissal of the writ as improvidently granted when, as is usually the case, the Court’s order
expresses none.”).
39. See Solimine & Gely, An Empirical and Institutional Analysis, supra note 27, at
1435 (documenting that seventy-three, or roughly half, of the 155 DIGs in the 1954 to 2005
period were accompanied by a majority opinion offering an explanation, and that, in
another twelve cases, a suggestive explanation or discussion was offered in a concurring or
dissenting opinion).
40. Professors Solimine and Gely make good use of these cases—cases not DIG’d but
where the possibility was noticed—in their quantitative analyses. See id. at 1430.
41. See, e.g., Transcript of Oral Argument at 76–77, Mahanoy Area Sch. Dist. v. B. L.,
141 S. Ct. 2038 (2021) (No. 20-255), 2021 WL 1667970 (colloquy between Justice Samuel
Alito and counsel David Cole, raising possibilities of DIG’ing or else issuing a narrow, fact-
bound ruling); Transcript of Oral Argument at 45–47, Seila Law LLC v. Consumer Fin. Prot.
Bureau, 140 S. Ct. 2183 (2020) (No. 19-7), 2020 WL 1033203 (colloquy between Justice Neil
Gorsuch and counsel Paul Clement, raising the possibilities of DIG’ing or else taking an off-
ramp, during which Justice Gorsuch comments about the suggested off-ramp that “boy, that
sounds a lot like a DIG, but, okay, fine”); Transcript of Oral Argument at 34, Frank v. Gaos,
139 S. Ct. 1041 (2019) (No. 17-961), 2018 WL 5635950 (colloquy between Justice Ruth
Bader Ginsburg and Principal Deputy Solicitor General Jeffrey Wall about DIG’ing versus
remanding).
42. 139 S. Ct. 2149, 2155 (2019). The majority opinion also seems to suggest that
“having not granted certiorari to resolve those separate questions” helps to justify
assuming—without deciding—the answers. Id.
43. Justice Clarence Thomas’s dissent, joined by Justices Elena Kagan and Neil
Gorsuch, explained: “McDonough asks the Court to bypass the antecedent question of the
nature and elements of his claim and first determine its statute of limitations. We should
have declined the invitation and dismissed the writ of certiorari as improvidently granted.”
Id. at 2162 (Thomas, J., dissenting).100 COLUMBIA LAW REVIEW FORUM [Vol. 122:90
question of interest.44 This move prompted a fierce dissent by Justice
Antonin Scalia, arguing that, “[o]nce we found out that the issue
presented differed from the issue we granted certiorari to review, the
responsible course would have been to confess error and to dismiss the
case as improvidently granted.”45
In other cases, the Court is accused by the dissent of deciding further
issues in order to serve error correction or lower-court supervision, even
when the QP originally deemed certworthy is no longer in play. One of the
more interesting examples occurs in Comcast Corp. v. Behrend, a case about
class certification, in which Justice Ginsburg argues vigorously in dissent
that the Court should have DIG’d the case due to its own error in rewriting
the QP at the time of granting certiorari (a mistake that caused the parties’
argumentation to focus on an issue that had been waived in the court
below).46 The dissent’s quarrel is not so much with that earlier mistake but
by Justice Scalia’s further restyling of the QP in his majority opinion in
order to decide the case anyway in a fact-bound way.47
Another strident expression is found in Justice Scalia’s own dissent,
joined by Justice Kagan, in City of San Francisco v. Sheehan.48 In this case,
after granting two QPs, the Court chose to DIG the first one—the cert-
worthy one—on grounds that the petitioner had changed the focus of its
argument after the grant of certiorari.49 But the Court went on to answer
the second question anyway. This latter choice is what the dissent decries,
with Justice Scalia noting that he would not “decide the independently
‘uncertworthy’ second question.”50 That is, the Court DIG’d one question,
but the dissenters would have DIG’d both. Justice Samuel Alito’s majority
44. See 574 U.S. 81, 84–85 (2014).
45. Id. at 97 (Scalia, J., dissenting). Justice Scalia was joined in relevant part by Justices
Clarence Thomas, Anthony Kennedy, and Elena Kagan. In the dissent’s view, the
insuperable vehicle problem was that the posture of the case meant that the Court would
be deciding whether the lower court abused its discretion in denying the petitioner
permission to appeal a remand order—rather than the curated question about
requirements for a notice of removal.
46. See 569 U.S. 27, 38–39 (2013) (Ginsburg, J., dissenting) (“This case comes to the
Court infected by our misguided reformulation of the question presented. For that reason
alone, we would dismiss the writ of certiorari as improvidently granted.”). Her dissent was
joined by Justices Breyer, Sotomayor, and Kagan. The case concerned the certification of a
class action against Comcast.
47. See id. at 40 (“By treating the first part of our reformulated question as though it
did not exist, the Court is hardly fair to respondents. . . . And by resolving a complex and
fact-intensive question without the benefit of full briefing, the Court invites the error into
which it has fallen.”). Justice Scalia replied in a footnote that the grounds for decision had
nonetheless been adequately argued. Id. at 36 n.5. It should be obvious to any reader of
Comcast that the short, fact-bound opinion that resulted was written solely for the sake of
decertifying that class action.
48. 575 U.S. 600, 618–20 (2015) (Scalia, J., concurring in part and dissenting in part).
49. Id. at 610.
50. Id. at 620 (Scalia, J., concurring in part and dissenting in part).2022] A COURT OF TWO MINDS 101
opinion defends the choice of answering the second question (about qual-
ified immunity) by likening it to a summary reversal and citing a group of
such decisions granting qualified immunity to officers.51
Such an openness to carrying out error correction—even after the
curated QP has disappeared, and even in the face of colleagues arguing
for a DIG—is not limited to a special regard for corporations facing a class
action or for government officers who have been denied qualified immun-
ity. It appears at least to extend to the context of capital punishment:52 The
tables were turned in Madison v. Alabama, in which Justice Alito ends up
accusing the Court of pursuing error correction;53 he was now the one
pressing for a DIG.54 In his dissent in McWilliams v. Dunn, Justice Alito sim-
ilarly ascribes to the Court the “most unseemly maneuver” of deciding the
case on fact-bound grounds resembling a QP that the Court had denied,
rather than addressing the originally granted QP, in order to reverse a
denial of habeas relief in a capital case.55 And in Flowers v. Mississippi,
Justice Clarence Thomas dissented, urging a DIG on the grounds that the
Court had rewritten the QP to serve a desire for error correction.56
51. Id. at 611 n.3 (“[O]ur dissenting colleagues would further punish San Francisco
by dismissing question two . . . . But question two concerns the liability of the individual
officers. . . . Because of the importance of qualified immunity ‘to society as a whole,’ the Court
often corrects lower courts when they wrongly subject individual officers to liability.”
(internal citation omitted) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982))).
52. Notably, both the qualified immunity and capital contexts are among those identi-
fied by Professor Hartnett as relatively more frequent subject areas in the Court’s summary
reversals during the 2005–2016 period. See Hartnett, Summary Reversals, supra note 12.
53. 139 S. Ct. 718, 737–38 (2019) (Alito, J., dissenting). Justice Alito’s opinion was
joined by Justices Thomas and Gorsuch. The majority opinion by Justice Kagan responded
as follows: “The dissent is in high dudgeon over our taking up the second question, arguing
that it was not presented in Madison’s petition for certiorari. But that is incorrect. The
petition presented two questions—the same two we address here.” Id. at 726 n.3 (citation
omitted).
54. See id. at 732 (Alito, J., dissenting). Justice Kagan wrote the majority opinion
(rejecting the proposed DIG) in Madison—but recall that she had joined Justice Scalia’s
dissent (urging a DIG that was declined) in Sheehan.
55. 137 S. Ct. 1790, 1802 (2017) (Alito, J., dissenting). Justice Alito’s opinion was
joined by Chief Justice Roberts and Justices Thomas and Gorsuch. It did not directly urge a
DIG but suggested that, if counsel had changed the issue in the way the majority arguably
did, the case would be DIG’d. See id. at 1807. Justice Breyer’s majority opinion replied: “We
recognize that we granted petitioner’s first question presented . . . not his second, which
raised more case-specific concerns. Yet that does not bind us to issue a sweeping ruling when
a narrow one will do.” Id. at 1800 (citation omitted).
56. 139 S. Ct. 2228, 2254 (2019) (Thomas, J., dissenting) (“[T]he Court granted
certiorari and changed the question presented to ask merely whether the Mississippi
Supreme Court had misapplied Batson in this particular case. In other words, the Court
tossed aside any pretense of resolving a legal question so it could reconsider the factual
findings of the state courts.”); see also id. at 2254–55 (“The Court does not say why it
disregarded our traditional criteria to take this case. . . . Whatever the Court’s reason for
taking this case, we should have dismissed it as improvidently granted. . . . [The majority’s]
effort proves the reason behind the rule that we do not take intensively fact-specific cases.”).
Justice Thomas was joined by Justice Gorsuch. Id. at 2252.102 COLUMBIA LAW REVIEW FORUM [Vol. 122:90
There, the Court reversed an egregious capital conviction.57
This turning of the tables, with the same Justices showing up on both
sides, is revealing. It suggests that, even if these complaints may be driven
by disagreement on outcomes, there does also seem to be a shared
institutional self-conception of the Court as curator. Some of the replies
are made on those same terms, arguing that the error to be corrected is in
fact included within the scope of a granted QP.
But not all replies say this. Most notable is the majority’s invocation in
McWilliams of the appellate norm that a case can be decided on any
available grounds—even an issue on which the Court had denied certio-
rari.58 As is well known to close observers of the Court’s work, and as the
next section will also illustrate, a broad interpretation of such a norm can
greatly expand discretion for the Court in reconsidering which questions
to answer—or not.
B. Taking an Off-Ramp
A classic way of dodging a curated QP using the methods of appellate
judging is to decide the case on alternative grounds. This other issue might
even be a secondary, independently uncertworthy QP also granted in the
case. In Google LLC v. Oracle America, Inc., a high-profile copyright case, the
Court avoided the broader of the two granted QPs by addressing the
narrower, more fact-intensive QP.59 In order to reach that second QP
(about fair use), Justice Stephen Breyer’s opinion explains that the Court
“assume[s] but purely for argument’s sake” an affirmative answer to the
first QP (about copyrightability)—and then answers the second QP in a
way that eliminates the need to answer the first QP for real.60 The
dissenting opinion by Justice Thomas asserts that “[t]he Court wrongly
sidesteps the principal question that we were asked to answer.”61 The
majority’s reply is that a “holding for Google on either question presented
would dispense with Oracle’s copyright claims” and that “we believe we
57. Flowers is the case in which a 7-2 Court, in an opinion by Justice Brett Kavanaugh,
reversed the defendant’s conviction after he had been tried six times—with several earlier
convictions thrown out for Batson problems or other prosecutorial misconduct. See id. at
2235. The opinion did not directly respond to the dissent’s reference to a DIG but
confirmed that it saw its task as error correction: “In reaching that conclusion, we break no
new legal ground. We simply enforce and reinforce Batson by applying it to the
extraordinary facts of this case.” Id. at 2251.
58. See 137 S. Ct. at 1800. For earlier examples of cases asserting or implying such a
norm, see Monaghan, supra note 16, at 706.
59. See 141 S. Ct. 1183, 1197 (2021).
60. Id. In other words, the Court assumed an answer to the first QP as one step in the
path to dodging it.
61. Id. at 1212 (Thomas, J., dissenting). Justice Thomas, who was joined in dissent by
Justice Alito, argues that one consequence is that, “[b]y skipping over the copyrightability
question, the majority disregards half the relevant statutory text and distorts its fair-use
analysis.” Id. at 1211. For further discussion of the possible distortion to the law of fair use,
see infra Part III.2022] A COURT OF TWO MINDS 103
should not answer more than is necessary to resolve the parties’ dispute.”62
There could hardly be a clearer expression of the credo of the appellate
mind.
Closely related in spirit is the appellate method of ruling so narrowly
that the curated QP is left largely or wholly unanswered. Two of the Court’s
recent religion cases, Masterpiece Cakeshop and Fulton, are well-known
examples—the latter drawing a frustrated separate writing from Justice
Alito, saying that “[t]his decision might as well be written on the dissolving
paper sold in magic shops.”63
One further appellate method for avoiding a question is to remand,
asking the lower court to clarify an ambiguity or address an antecedent
question.64 In the administrative law case of PDR v. Carlton Harris, a
concurrence by Justice Brett Kavanaugh observes that, “[r]uling narrowly,
the Court does not answer the question presented . . . [but instead]
remands the case for analysis of two ‘preliminary issues,’ which, depending
on how they are resolved, could eliminate the need for an answer in this
case to the broader question we granted certiorari to decide.”65 Still, the
concurrence argues that the Court should just decide the QP anyway.66
In the expressions of the Justices in these cases, there seems to be a
broadly shared acceptance of the appellate norm that the Court can
decide the case on any available grounds (despite having directed the
parties to focus their arguments on specific QPs). This gives the Court
various ways to sidestep a curated QP that it now regrets taking. It is
revealing that the stated objections to these off-ramps take two forms:
either debating the merits of that alternative ruling, or else simply saying
that the Court should have addressed the curated QP. Nobody is arguing
that the Court must address the QP it granted; nor is anyone arguing that
the Court can’t also address the QP even while ruling on alternative
grounds. The overall effect seems to be maximal discretion for the Court.
62. Id. at 1197.
63. See Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1887 (2021) (Alito, J.,
concurring) (arguing that the Court should have addressed the QP concerning overruling
Employment Division v. Smith, 494 U.S. 872 (1990)); see also Masterpiece Cakeshop, Ltd.
v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1732 (2018). Justice Alito was joined by Justices
Thomas and Gorsuch in Fulton. Chief Justice Roberts’s majority opinion replies that “we
need not revisit [Smith] here. This case falls outside Smith because the City has burdened
the religious exercise of [Catholic Social Services] through policies that do not meet the
requirement of being neutral and generally applicable.” 141 S. Ct. at 1877.
64. Part III examines, as a cautionary tale, the well-known example of Spokeo, Inc. v.
Robins, 578 U.S. 330 (2016).
65. PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051, 2058
(2019) (Kavanaugh, J., concurring).
66. Id. Justice Kavanaugh was joined by Justices Thomas, Alito, and Gorsuch.104 COLUMBIA LAW REVIEW FORUM [Vol. 122:90
III. IMPROVIDENTLY PUNTED
Unintended consequences may occur, however, when the Court uses
appellate moves to dodge a legal question.67 Although the Justices devote
much attention to envisioning the real-world impact of their ruling when
they answer a curated QP, it may be easy for them to overlook the adverse
side effects of the rulings they make as they avoid the curated QP.
A. The Risk of Distortions to Law
The foremost risk is the possibility of substantive distortion to the
legal doctrine used as the off-ramp. Some of the risk arises from the
temptation to lean hard on that analysis—say, about jurisdiction or an
antecedent legal question—in favor of achieving the desired aim, which is
to enable the Court to plausibly say that it cannot (or need not) reach the
curated QP. In addition, if the Justices see this analysis as just a way to punt
the real issue, the Court might be addressing the issue with little briefing
or other information,68 while also giving it less careful attention than a
certworthy QP would receive.
The problem is that such superficial treatment of the alternative
grounds nevertheless becomes enshrined in an opinion of the Court that
will be cited by litigants and applied by the lower courts. In avoiding the
curated question, the Court might end up twisting another question of
law, creating distortion and confusion.69
67. Some of the points raised here will also apply to rescuing troubled vehicles, though
with different weight, given the distinctive institutional considerations of keeping a case
versus dumping one. In some aspects, as one might expect, the contrast between a DIG and
rescuing a vehicle is greater than between a DIG and an off-ramp. Most obviously, rescuing
a vehicle does not involve the costs of leaving the QP undecided. Another difference is that
rescuing a poor vehicle entails an opportunity cost in not being able to use a future, cleaner
vehicle to decide the QP. And thus, the problem of “bad cases make bad law” may apply.
An off-ramp or a DIG does not entail this opportunity cost; rather, it allows a future case to
come along, presenting the earlier-punted question, possibly after a change in the Court’s
personnel. See, e.g., 303 Creative LLC v. Elenis, 142 S. Ct. 1106, 1106 (2022) (mem.)
(granting review of a free speech question similar to the one previously punted in Masterpiece
Cakeshop); see also Amy Howe, Justices Will Hear Free-Speech Claim From Website Designer
Who Opposes Same-Sex Marriage, SCOTUSblog (Feb. 22, 2022), https://www.scotusblog.com/
2022/02/justices-will-hear-free-speech-claim-from-website-designer-who-opposes-same-sex-
marriage [https://perma.cc/X9R4-TYHT].
68. Asking for supplemental briefing in such situations may help relieve this concern,
but it may also feel like throwing good money after bad. When there is no such briefing,
however, some of the practical concerns here overlap with those that attend the Court’s
reaching out to decide new issues not presented by the parties. See, e.g., Margaret L. Moses,
Beyond Judicial Activism: When the Supreme Court Is No Longer a Court, 14 U. Pa. J. Const.
L. 161, 177–82 (2011).
69. Such distortions are also possible in rescuing a vehicle (as opposed to taking an
off-ramp)—such as answering an antecedent question in a way that allows reaching the
curated QP. Consider, for example, the dissenters’ criticisms in Dart Cherokee Basin
Operating Co. v. Owens, 574 U.S. 81, 96–104 (2014) (Scalia, J., dissenting). For additional
analysis, see Ronald Mann, Opinion Analysis: Court Stretches to Correct Anachronistic2022] A COURT OF TWO MINDS 105
A well-known example is Spokeo, Inc. v. Robins, in which the Court
punted on the question of interest70—a question it had already avoided
before in an earlier case71—by remanding the case to the lower court to
address one component of Article III standing. But what the Spokeo
opinion said about standing doctrine along the way, in order to justify this
punt, generated enormous confusion and disarray in the lower courts.72 If
Spokeo’s slapdash reasoning had seemed passable enough as makeweight
inside the Court, the opinion’s impact was anything but trivial beyond
those walls: Spokeo has been cited over 5,000 times in the federal courts.73
Tenth Circuit Pleading Rule, SCOTUSblog (Dec. 16, 2014), https://www.scotusblog.com/
2014/12/opinion-analysis-court-stretches-to-correct-anachronistic-tenth-circuit-pleading-
rule/ [https://perma.cc/MF6R-WZUA] (noting that readers of Dart Cherokee Basin may
think the Court allowed its “strong view of the merits to affect its review of the abuse-of-
discretion standard” and that the Court might need to repair “the damage to the law of
review, steadily limiting the broad review of discretion applied here”).
70. See 578 U.S. 330, 342–43 (2016) (remanding for the circuit court to address the
“concreteness” of injury as one of the requirements for standing); see also Jamal Greene,
The Age of Scalia, 130 Harv. L. Rev. 144, 171 (2016) (writing that Spokeo “did no more than
punt the case back to the Ninth Circuit”); Allison Grande, High Court’s Spokeo Punt Sets
Bar for Class Action Injuries, Law360 (May 16, 2016), https://www.law360.com/articles/
796883/high-court-s-spokeo-punt-sets-bar-for-class-action-injuries (on file with the Columbia
Law Review). It is thought that the punt in Spokeo may have occurred because the Justices
found themselves to be split 4-4 (after Justice Scalia passed away) on the real question of
interest. See, e.g., Justin Pidot, Tie Votes in the Supreme Court, 101 Minn. L. Rev. 245, 299
(2016). Note that the six Justices in the majority would have had the votes to DIG; one might
speculate that the etiquette or appearances of undoing certiorari became more complicated
due to the passing of Justice Scalia.
71. The prior case involving a similar QP, First American, had been DIG’d several
months after oral argument—rather than shortly after, as is typical for a vehicle problem—
suggesting that the DIG was due to the Justices not reaching an answer on the QP. See
Karlan, supra note 26; Kevin Russell, First American Financial v. Edwards: Surprising End to
a Potentially Important Case, SCOTUSblog (June 28, 2012), http://www.scotusblog.com/
2012/06/first-american-financial-v-edwards-surprising-end-to-a-potentially-important-case/
[https://perma.cc/3E54-HN2N].
72. See, e.g., Rachel Bayefsky, Constitutional Injury and Tangibility, 59 Wm. & Mary L.
Rev. 2285, 2289 (2018) (“In the wake of Spokeo, federal courts have wrestled with how to
operationalize the Supreme Court’s pronouncements on the cognizability of intangible
harm.”); Danielle Keats Citron & Daniel J. Solove, Privacy Harms, 102 B.U. L. Rev. (forthcoming
2022) (manuscript at 10), https://scholarship.law.gwu.edu/faculty_publications/1534/
[https://perma.cc/6MMQ-T7JD] (“In the wake of Spokeo, courts issued a contradictory mess
of decisions regarding privacy harm and standing. . . . In the lower courts, no clear
principles emerged to guide the harm inquiry for standing in privacy cases. Rather than a
circuit split or other clear disagreement in approach, courts produced a jumbled mess by
grasping at inconsistent parts of Spokeo.”); Jennifer M. Keas, Supreme Court Will Not Look
at Spokeo Again, Leaving Lower Courts to Grapple With Article III Uncertainties, Foley &
Lardner LLP: Consumer Class Def. Couns. (Feb. 8, 2018), https://www.foley.com/
en/insights/publications/2018/02/supreme-court-will-not-look-at-spokeo-again-leavin
[https://perma.cc/8PWA-DHKU] (practitioner article noting that “the lower courts have
struggled to apply [Spokeo’s] guidance, leading to some alarmingly varied results”).
73. Spokeo, Inc. v. Robins, Westlaw, https://1.next.westlaw.com/
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